from the the-S's-stand-for-'stupid' dept

You don't have to be affiliated with any known terrorist group to be added to the government's terrorist watchlist. The Intercept's publication of the numbers behind the massive amount of people the government's keeping an eye on made that perfectly clear. A full 40% of the list -- 288,000 people -- are there without any particular justification. The agencies making these nominations clearly can't articulate why certain people should receive enhanced searches and questioning each and every time they seek to board a domestic flight. But they nominate these people anyway, using something no more scientific (or counter-terroristic) than a hunch.

Terrorists hate humans so much we would physically block exit points in the event of a crash and/or fire.

They make you do that weird verbal confirmation thing after the fight attendant recites that exit row speech, and we’re known for only speaking Arabic.

The TSA just likes making stupid rules vacant of any rationale.

"Stupid rules vacant of any rationale" aptly describes a large swath of the Terrorist Watchlist, including Young's 4-S status, which prevents him from utilizing technological advancements like checking in electronically using a mobile device or a kiosk.

As far as Young can tell, it's a nearly two-decade-old misdemeanor that's keeping him from traveling without additional molestation.

His full time job is running an online business, but he is also a prominent animal activist; the latter is what garners him the extra TLC from the TSA. The property crime for which he was convicted dates back to 1997 when he went on a cross-country road trip freeing minks from fur farms in three states. His weapon of mass destruction was a pair of bolt cutters. On the lam for a number of years, he was apprehended and tried in 2005, and found guilty of “animal extortion terrorism.”

"Animal extortion terrorism" isn't covered under the guidelines for the Terrorism Watchlist. In fact, Young was only ever convicted of a misdemeanor (pleading down from a felony) and served on two years for his federal crime. But that's still enough to make him a feared traveler, one who is never to be trusted, not even 17 years removed from the "crime spree" that first drew the government's attention. While the prosecutor tried to connect Young with a group the DHS actually recognizes as domestic terrorists (the Animal Liberation Front), it didn't stick. Young denies any connection with the animal rights extremists.

There's another reason Young is blogging about his experiences: this very public outing of his TSA-stained laundry makes it that much tougher for the US government to simply "disappear" him, air travel-wise.

According to the Intercept, there were 16 people on the No-Fly list in 2001; in 2013, it had exploded to 47,000. “I’m worried the government will slowly move people from the Selectee list to the No-Fly list,” Young says. “I want a podium to speak from in case that does happen to me.”

As has been noted here, the No-Fly list is an unconstitutional joke. The "redress process" is so horribly ineffective that a court actually declared it to be a violation of Americans' civil rights. The Terrorism Watchlist is not only broader, but it's possibly more damaging. While it won't actually prevent you from flying (provided you don't mind every trip to the airport being the Full TSA Security Theater Experience), it does open your life up to a whole lot more government scrutiny.

Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition—”e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information”—details about pets from veterinarians or tracking chips—is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals.

This is from the same rulebook and documents that admitted that nearly 300,000 of the 680,000 people on the government's Terrorist Watchlist have "no recognized terrorist group affiliation." Just another ridiculous facet of the Dept. of Homeland Security's security theater: loading up on unrelated "extras" just so it can boast it has a "cast of thousands" (and demand a budget of billions!). No terrorism experience necessary. Enjoy your flight!

from the hiding-in-shame dept

Back in July, we wrote about the Intercept releasing a leaked copy of the US law enforcement guidelines for putting someone on the no fly list. There have been a series of lawsuits recently concerning the no fly list, and the government has basically done everything possible, practically to the point of begging judges, to avoid having those cases move forward. So far, that's failed miserably. The Rahinah Ibrahim case, for example, showed how a Stanford PhD student with no terrorist connections was put on the list by someone checking the wrong box on a form (and then was kept on a separate terrorist watchlist under a secret exception to the rule that there be "reasonable suspicion.") In that case, like every other, the DOJ claimed "state secrets" in trying to get the case dismissed. There have also been cases about the feds using the threat of being put on the no fly list to force unwilling people to "become informants." An important ruling back in July said that the process for getting off the list is unconstitutional.

In another case involving the list, Gulet Mohamed is challenging the fact that he's on the list, and the DOJ has done its usual "state secrets, throw out the case" claim. The judge, so far, isn't buying it, and has asked the DOJ to reveal how it puts people on the list. Specifically, Judge Anthony Trenga asked the DOJ to provide:

[A]ll documents, and a summary of any testimony, expert or otherwise, that the United States would present at an evidentiary hearing or trial to establish that inclusion on the No Fly List, as applied to United States citizens who are not under indictment or otherwise charged with a crime and who have not been previously convicted of a crime of violence, is necessary, and the least restrictive method available, to ensure the safety of commercial aircraft from threats of terrorism, and that no level of enhanced screening would be adequate for that purpose.

In a filing last week, Mohamed's lawyers pointed to the leaked guidelines, and the DOJ responded by saying, "Huh? Document? What document? We don't know of any such document, and deny its existence." Or something to that effect:

With respect to Plaintiff’s points, Defendants do not acknowledge the authenticity of the
purportedly leaked documents, and will respond to the proposed Notice in due course.

The DOJ has now gone further and said it still doesn't think it should have to produce the information because it's still claiming state secrets, and it doesn't think the judge should have to look at the documents in question to determine if the state secrets demand is appropriate. Yes, they're arguing that the judge should determine if something can properly be called a state secret without revealing what the information is. Actually, the DOJ is going even further, arguing that it's inappropriate to look at the alleged state secrets to determine if the state secrets privilege applies.

The requested submission would not assist the Court in deciding the pending
Motion to Dismiss because it is not an appropriate means to test the scope of the assertion of the
State Secrets privilege, does not pertain to the claims in the Complaint, and does not address the
appropriate legal standard for substantive due process.

Got that? The Court should just agree that it's a state secret and shut down the entire case. The DOJ pretends first that the necessary documents haven't already been leaked to the world, and second acts like it's crazy for a judge to want to actually see the documents before determining if it's really a "state secret" they're protecting.

Of course, as we noted, when the document leaked it seemed pretty clear that the DOJ was lying when it said it wouldn't reveal them because of state secrets. It doesn't want to reveal them, because they reveal how the process almost certainly violates the 4th Amendment. Rather than protecting "national security," the attempts to hide the details of the list are very much about protecting "DOJ security."

from the questions-to-ponder dept

Earlier this week, Tim Cushing wrote about The Intercept's latest scoop, concerning the makeup of the US government's federal terrorist watchlist, and the fact that a large chunk of it isn't affiliated with any terrorist groups. While most of the article focused on that point, he made two other notes in passing -- the first was that it was obvious that this release was from a second leaker, not Snowden, and the second was about how the government "leaked" the story in a "friendlier" manner to the AP in order to beat The Intercept. We thought both of these asides were interesting, but they've both turned into big stories on their own.

CNN later confirmed that US government officials are now searching for the second leaker (though "second" may not be accurate either...), more or less confirming what many people had been suspecting. Meanwhile, the "scoop spoiling" by the federal government actually resulted in a semi-apology from the National Counterterrorism Center (NCTC) who gave the scoop to the AP. The NCTC claimed it had been working with the AP on a story for a while, and after seeing what The Intercept was doing, felt it needed to give them the heads up, though it also says it could have handled the situation better. Of course, this also makes it more likely that The Intercept won't bother giving the government much time (if any) to respond on future stories. Why risk the chance of having the government spoil the scoop again?

However, with all this concern about the "second leaker," Chris Soghoian asks a very good question. If the Justice Department is going to go hunting for whoever leaked the information to The Intercept, will it similarly go after whoever at NCTC was apparently providing the same basic information to the Associated Press? Or how about the person who told CNN that the US government believes there's a "second leaker"? Because that information is also a leak, and potentially a big one, given that it will alert the leaker that the government is searching for him or her.

Somehow, we don't think the DOJ will be too concerned about those leaks. "Official" leaks happen all the time and no one cares. It's just the leaks that make the government look bad that somehow are seen as criminal.

The culmination of post-9/11 policies and the steady erosion of civil liberties in the service of "fighting terrorism" has opened up nearly 300,000 people to additional scrutiny because ¯\_(ツ)_/¯ .

The list has increased 10-fold during Obama's stay in office, growing from 47,000 at the end of Bush's term to 680,000, 40% of whom the government is sure represent some sort of a threat, even if it can't quantify that in any specific way.

When U.S. officials refer to "the watchlist," they typically mean the TSDB, an unclassified pool of information shared across the intelligence community and the military, as well as local law enforcement, foreign governments, and private contractors. According to the government's watchlisting guidelines, published by The Intercept last month, officials don't need"concrete facts" or "irrefutable evidence" to secretly place someone on the list—only a vague and elastic standard of "reasonable suspicion."

It's long been noted that articulable facts are unwanted guests in the War on Terrorism (and War on Drugs) discussion. Instead, hunches and gut feelings are elevated to places formerly occupied by Fourth Amendment protections.

This group of people, shrugged into "nomination" by a variety of government agencies, is then shared with law enforcement, private contractors and foreign governments. That's at least 280,000 people being vetted with impunity by a variety of TSDB end users -- people who are deemed too dangerous to go unsurveilled but not dangerous enough to arrest or investigate further.

If there's any good news here, it's that at least some form of filtering is used to keep the database from swelling exponentially.

Most people placed on the government's watchlist begin in a larger, classified system known as the Terrorist Identities Datamart Environment (TIDE). The TIDE database actually allows for targeting people based on far less evidence than the already lax standards used for placing people on the watchlist. A more expansive—and invasive—database, TIDE's information is shared across the U.S. intelligence community, as well as with commando units from the Special Operations Command and with domestic agencies such as the New York City Police Department.

Those running TIDE have actually celebrated the fact that they recently added the millionth name to the database, failing to see that the constantly-increasing database is actually an admission of failure. If the system was working, the number of names should remain nearly constant, as those who aren't threats are removed from the list (something which apparently never happens) and those that are threats are rounded up (or otherwise disposed of).

And there seems to be a hint of racial profiling contained within the TSDB numbers.

The top five U.S. cities represented on the main watchlist for "known or suspected terrorists" are New York; Dearborn, Mich.; Houston; San Diego; and Chicago. At 96,000 residents, Dearborn is much smaller than the other cities in the top five, suggesting that its significant Muslim population—40 percent of its population is of Arab descent, according to the U.S. Census Bureau—has been disproportionately targeted for watchlisting.

Beyond this nearly-suspicionless watchlisting, there's further privacy concerns, prompted by the addition of millions of pieces of biometric data from American citizens, something that ramped up immediately following the Boston Bombing.

In the aftermath of last year's Boston Marathon bombing, the Directorate of Terrorist Identities began an aggressive program to collect biometric data and other information on all Americans on the TIDE list. "This project includes record by record research of each person in relevant Department of State and [intelligence community] databases, as well as bulk data requests for information," the documents note.

The DTI also worked on the subsequent Chicago Marathon, performing "deep dives" for biometric and other data on people in the Midwest whose names were on the TIDE list. In the process, the directorate pulled the TIDE records of every person with an Illinois, Indiana, or Wisconsin driver license.

That the many agencies tasked with counterterrorism are operating on instinct rather than articulable suspicion is nothing surprising. The large number of people with "no known terrorist affiliation" being added to a terrorist watchlist is the natural progression of bad policies with 12 years of momentum behind them.

As an additional note, it appears the US government attempted to "scoop" The Intercept by leaking a much more friendly recap of the leaked watchlist details to the AP, at least according to the this tweet by Jeremy Scahill, one of the post's authors.

US government, pissed we were publishing our story, tried to undermine us by leaking it to other news organization right before we published

US government, pissed we were publishing our story, tried to undermine us by leaking it to other news organization right before we published

A look at the AP piece seems to confirm this, as it presents something more akin to press release than a serious dive into the numbers. (More confirmation at the Huffington Post. The government claims its scoop "theft" was a "mistake.") It also makes no mention of the information appearing at The Intercept first. The AP's "story" presents this as mostly a triumph by the government, with only the briefest aside about privacy or civil liberties concerns.

This excerpt is indicative of the (very short) article's credulousness:

The database's growth is a result of the government's response to a failed attempt to blow up a commercial airliner over Detroit on Christmas Day in 2009. The terror operative's name was included in the database before the attack, but it was not on a list that would have prevented him from getting on a U.S.-bound airplane. Since then, the government has lowered the standards for placing someone on the no-fly list and intelligence agencies have become more diligent about submitting names to the TIDE database.

The database was created after the 9/11 terror attacks when it became clear that the government's terror watch list was ineffective. The watch list was once maintained in a rolodex and in paper notebooks, according to redacted photographs provided by the National Counterterrorism Center.

And here's the entirety of the "discussion" about the possible negative of an inflated, nearly-suspicionless watchlist of terrorist suspects.

The government does not need evidence that links someone to terrorism in order for the person to be included in the database. This is among the reasons the database and subsequent terror watch lists have been criticized by privacy advocates.

The AP says it has "learned," but it looks more like it was handed some talking points and an ultra-tight deadline. With thousands of news outlets pulling in the AP feed, this will allow the government to get out ahead of the leak, or at the very least, present a cohesive media presence that presents a "fair" portrayal of its out-of-control counterterrorism databases.

from the not-because-it-helps-terrorists dept

Having already discussed The Intercept's publication of the federal government's guidelines for declaring people terrorists to put on its various watchlists (including the infamous "no fly list"), it's raising some serious questions about why the DOJ had been fighting so hard to keep these guidelines from coming out. As we've discussed, in basically any case challenging the various government watchlists, the DOJ has freaked out and claimed "state secrets" to try to get the cases thrown out entirely.

I agree with the FBI that the Watchlisting Guidance, although unclassified, contains national security information that, if disclosed, for the reasons discussed in the FBI's classified declaration, could cause significant harm to national security.... If the Guidance were released, it would provide a clear roadmap to undermine the Government's screening efforts, a key counterterrorism measure, and thus, its disclosure reasonably could be expected to cause significant harm to national security.

Of course, now that the Watchlisting Guidance is out, we can take a look and see if that's actually true. And... Holder's statements, not surprisingly, appear to be completely bogus. The Guidelines are so vague and so broad that it gives no real indication of how to get around them or whether or not any particular person is likely to be placed on the list.

What the guidelines do show, however, is the level of extra scrutiny people on the list are subject to. And, as we noted, much of that certainly appears to violate the 4th Amendment (or, at the very least, open itself up to a pretty clear 4th Amendment challenge in the courts). So, once again, it seems like Holder's real reason to declare "state secrets" had little to do with "national security" and a hell of a lot to do with "DOJ security" in keeping its illegal and unconstitutional practices from further public and judicial scrutiny.

from the we're-about-to-go-through-your-lives dept

We've already written about The Intercept's publication of the US government's guidelines for declaring you a possible terrorist subject to extra scrutiny whenever you run into a government official. But we wanted to do a second post on the part that focuses on just what kind of extra scrutiny you get if you're on the list. Basically, it's dig through every aspect of this person's life that you can:

Screeners are also instructed to collect data on any “pocket litter,” scuba gear, EZ Passes, library cards, and the titles of any books, along with information about their condition—”e.g., new, dog-eared, annotated, unopened.” Business cards and conference materials are also targeted, as well as “anything with an account number” and information about any gold or jewelry worn by the watchlisted individual. Even “animal information”—details about pets from veterinarians or tracking chips—is requested. The rulebook also encourages the collection of biometric or biographical data about the travel partners of watchlisted individuals.

In the wake of last month's Wurie decision at the Supreme Court, I'm curious how much of that is now violating the subject's 4th Amendment rights... It seems likely that at least someone is going to challenge these rules.

from the because-you-just-might-be-a-terrorist dept

Jeremy Scahill and Ryan Deveraux, over at The Intercept have a giant scoop: the full 166-page guidebook that US law enforcement uses to declare someone a terrorist who deserves to be on one of its various watchlists from the no-fly list to the "terrorist screening database." We've had plenty of stories about the no fly list and the TSDB, and the ridiculous lengths that the US government has gone to to keep anyone from knowing if or why they're in any of these databases -- leading to a series of lawsuits from individuals who were put on that list under very questionable circumstances.

We were happy last month to see that the process for getting off of these watchlists was declared unconstitutional, but the lawsuits over these watchlists suggest that they are prone to abuse and error. We were particularly disturbed to find out in a recent lawsuit that the US government actually has a secret exception to reasonable suspicion for putting people on the list.

The document released by The Intercept is quite revealing, and shows that President Obama has massively expanded the criteria for getting people onto the list. In fact, as the report notes, the President "quietly approved" an expansion "authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist."

The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.

As you might imagine, given all the stories about people being put on various watchlists even though they're clearly not terrorists, the guidelines are crazy expansive:

The document’s definition of “terrorist” activity includes actions that fall far short of bombing or hijacking. In addition to expected crimes, such as assassination or hostage-taking, the guidelines also define destruction of government property and damaging computers used by financial institutions as activities meriting placement on a list. They also define as terrorism any act that is “dangerous” to property and intended to influence government policy through intimidation.

And obviously this goes way beyond just boarding (or not boarding) airplanes. As the report notes, if you're pulled over for speeding and the police run your name, if you're on the watchlist, the police will get a notification, leading them to automatically think that you're a suspected terrorist. The guidelines also contradict themselves directly. At first it says that:

To meet the REASONABLE SUSPICION standard, the NOMINATOR, based on the totality of the circumstances, must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or has been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to TERRORISM and/or TERRORIST ACTIVITIES.

Okay. So you need to have a factual basis for reasonable suspicion, right? Wrong:

In determining whether a REASONABLE SUSPICION exists, due weight should be given to the specific reasonable inferences that a NOMINATOR is entitled to draw from the facts in light of his/her experience and not on unfounded suspicions or hunches. Although irrefutable evidence or concrete facts are not necessary, to be reasonable, suspicion should be as clear and as fully developed as circumstances permit.

So, it can't just be a hunch. It has to be a really good hunch seems to be the lesson.

The report also likely reveals the "secret" exceptions to reasonable suspicion that the judge refused to reveal in the Rahinah Ibrahim case we wrote about. She was kept on the watchlist despite there being no reasonable suspicion. One of the exceptions is the "family member" loophole (which some had suggested was likely the issue in the comments to our story about Ibrahim). But it appears the exceptions are much broader:

There are a number of loopholes for putting people onto the watchlists even if reasonable suspicion cannot be met.

One is clearly defined: The immediate family of suspected terrorists—their spouses, children, parents, or siblings—may be watchlisted without any suspicion that they themselves are engaged in terrorist activity. But another loophole is quite broad—”associates” who have a defined relationship with a suspected terrorist, but whose involvement in terrorist activity is not known. A third loophole is broader still—individuals with “a possible nexus” to terrorism, but for whom there is not enough “derogatory information” to meet the reasonable suspicion standard.

And then there's the fact that the new "threat-based expedited upgrade" program, which was put in place following the US failing to notice that the famed "underwear bomber" got on his plane despite being on the watchlist. So, rather than recognize that the list was broken, the administration just added a new category, allowing a single White House official the unilateral power to elevate entire "categories of people" into a special list for extra scrutiny.

This extraordinary power for “categorical watchlisting”—otherwise known as profiling—is vested in the assistant to the president for homeland security and counterterrorism, a position formerly held by CIA Director John Brennan that does not require Senate confirmation.

The rulebook does not indicate what “categories of people” have been subjected to threat-based upgrades. It is not clear, for example, whether a category might be as broad as military-age males from Yemen. The guidelines do make clear that American citizens and green card holders are subject to such upgrades, though government officials are required to review their status in an “expedited” procedure. Upgrades can remain in effect for 72 hours before being reviewed by a small committee of senior officials. If approved, they can remain in place for 30 days before a renewal is required, and can continue “until the threat no longer exists.”

Basically, as most people suspected, it appears the government has broad and, until now, secret powers to effectively ruin someone's life by placing them on one of these watchlists... with no legitimate way to get off.

from the check-his-locker dept

Let me let you into the helmet for a moment. Given all the nonsense surrounding the various United States alphabet agencies and their various watchlists, I've grown thankful that I have a fairly uncommon name. Between the potential for antagonistic abuse by scorned lovers, the opportunity for clerical errors to result in life-changing refusals of admittance to the United States, and the general crap-show that is the no fly list, it's somewhat nice to have a rather unique identifier. It almost cancels out the mispronunciations, lacking nicknames like "Geigner-counter", and seriously non-stop questions about what life is like running the Treasury Department. Almost.

But stories like this one offered by reader Richard really cement my gratitude for my evil-sounding German surname. I could, as this story goes, have an incredibly generic name and live in a foreign country and find myself having to wade through all kinds of red tape just to get a few electronics parts. This is the story of David Jones and his quest to get a couple of parts from a local distributor in Australia.

Through the website I ordered some local in-stock parts from the Element 14 warehouse in Sydney, for pickup at the trade counter. Usually they are very efficient and have the parts ready for collection before I have time to drive there. But this day I gave them a few hours extra. When I got there my parts weren't ready and it took them a bit of time to figure out that my order had been placed “on hold”.

But they enquired further with someone else and the word came back that it wasn't the parts that had been flagged, it was my NAME that was flagged. And they said it was a US government watch list of some description. I was stunned, and it seemed like they didn't quite understand why I was so shocked at this. Because, you know, the whole world has to just sit by and let the US government dictate everything at will.

Flagging David Jones? What could go wrong? I hear he has a really terrifying locker and was part of a terrible Beatles knock-off band a couple of decades ago. On the other hand, harassing foreign citizens with common names out of an over-abundance of name-recognizing caution is probably going to make everyone look foolish, on top of all the work it certainly must create. On top of that, the helpful employees of Element 14 were confident they could just work around the flag to begin with. So the efforts aren't just silly, they're futile on top of it. Oh, US government, don't ever change.

Not that Mr. Jones was as amused as I, of course.

So let's see if I have this straight – An Australian subsidiary, owned by a UK parent company, listed on the UK stock exchange, has an ordering system that automatically matches generic names against some US Government watch list, and flags those orders and puts them on hold, for parts that are already stocked in Australia, are likely not made in the US, and likely have come from the main UK warehouse. Call me stupid, but something doesn’t seem right with that…

No, Mr. Jones, we don't think you're stupid. We think you're cunning, an evil mastermind terrorist from Australia, because we've seen so many of those. Or maybe it's one of the other bazillion David Jones' plotting around the world. You can't expect us to know. It's not like we're reading everyone's emails or something...

from the funny-how-that-works dept

Last December, we wrote about a report put out by the Swiss executive branch noting that, based on their research, it appeared that unauthorized file sharing was not a big deal, showing that consumers were still spending just as much on entertainment, and that much of it was going directly to artists, rather than to middlemen. In other words, it was a market shift, not a big law enforcement problem. At the time, we wondered if Switzerland had just bought itself a place on the USTR's "Special 301 list" that the administration uses each year to shame countries that Hollywood doesn't like.

That list doesn't come out for a bit, but there's another, similar list, put out by the Congressional International Anti-Piracy Caucus (yeah) that has added Switzerland to its "bad countries" list along with China, Russia and Ukraine. Italy also joined Switzerland as a "first-timer" on the list -- despite rulings that required ISPs to block access to various file sharing sites. The issue in Italy? I'd guess that a story we had earlier this year has something to do with it. After some political fighting, the government there basically decided to just stop regulating copyright issues online. There's also an upcoming fight about new copyright proposals coming in Italy, and this seems like a preemptive strike for some of Hollywood's favorite Congressional Reps and Senators to pressure Italy into approving bad laws that Hollywood likes.

Meanwhile, both Spain and Canada -- who passed legislation very much at the behest of American interests -- were removed from the evil part of the list and switched to "in transition." The message is not particularly subtle: do not, at any cost, question Hollywood's planned copyright laws, or the US government will shame you as a haven for pirates, no matter how bogus that claim really is. Hopefully governments in Switzerland and Italy resist such obvious lobbying on behalf of special interests and pay attention to reality in those markets.

from the alternative-to-the-special-301 dept

We've written plenty about the absolutely ridiculous Special 301 Report put out each year by the USTR. It's a list that the US uses to name and shame countries that it considers "naughty" when it comes to not passing intellectual property laws that the US likes. Of course, there is no actual methodology behind the list. Basically, various industry groups (i.e., RIAA, MPAA, PHRMA etc.) send in their thoughts about which countries they don't like, and the USTR magically takes their complaints and produces the list. This leads to bizarre things like naming Canada one of the worst of the worst, despite having stricter copyright laws than the US already.

Consumers International has decided that there's no reason that the USTR gets to have all the fun, so it's been releasing its own IP Watchlist ranking countries based on how pro- or anti-consumer local IP laws. In other words, Consumer International judges IP laws around the globe based on IP's actual purpose: to benefit the public. The actual report (pdf and embedded below) is a good read.

The US actually does fairly well. We're helped along by the fact that we actually have things like "fair use" in the law. The UK, however, comes in near the bottom. The report also highlights the ridiculousness of pushing stronger enforcement in some of the poorest countries in the world:

Malawi is a politically-troubled, least-developed country where
more than half of the population lives below the international
poverty line of $1.25 per day. One would have thought that
IP enforcement should take a back seat in such a country, in
favour of measures designed to ensure the satisfaction of the
population’s basic needs of food, water, clothing, shelter, and
medical care.

Yet Malawi was one of four poor countries in which Interpol
chose to conduct an anti-counterfeiting campaign in 2009, and in which the local police often join IP-holder organisations
in conducting copyright raids against local traders. Is this noholds-barred, developed-country model of IP protection and
enforcement truly the most appropriate model for countries
like Malawi?

It's worth noting, by the way, that the top three countries on Consumer International's list -- Israel, Indonesia and India -- were also on the USTR's Special 301 "Priority Watch List" as having the worst IP regimes last year. But, as Consumer International shows, they actually have the best IP regimes when it comes to serving the needs of the public. That seems to show just how ridiculous the USTR's Special 301 list really is.